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Dwarik Bala and ors. Vs. Nidhi Ram Bala and Shusari Dasya and anr. - Court Judgment

LegalCrystal Citation
CourtKolkata
Decided On
Judge
Reported in40Ind.Cas.462
AppellantDwarik Bala and ors.
RespondentNidhi Ram Bala and Shusari Dasya and anr.
Excerpt:
civil procedure code (act v of 1908), order ii, rules 6, 7 - possession or joint possession of particular plot, suit for recovery of, maintainability of--frame of suit--contradictory causes of action--estoppel by pleading. - .....the alternative, first of all to recover certain particular specified land on the footing that a legal partition had been made between the parties and, if the partition was not legal, then he asked to be put in joint possession with the defendants. this is not a case where the plaintiff sued to recover a particular land on the footing that there had been a partition and that ease having failed the court awarded a decree for joint possession. the plaintiff set out his case from the outset and the defendants had notice of the alternative case. they might have applied to the court under the provisions of the code to exclude one of the causes of action from the present trial. they, however, did not do so. the case went to trial and was argued in both the lower courts without any objection,.....
Judgment:

1. This is an appeal by the defendants against a judgment of the learned Subordinate Judge of Jessore affirming a decision of the Munsif of Jhenida. The plaintiff brought a suit in the alternative, first of all to recover certain particular specified land on the footing that a legal partition had been made between the parties and, if the partition was not legal, then he asked to be put in joint possession with the defendants. This is not a case where the plaintiff sued to recover a particular land on the footing that there had been a partition and that ease having failed the Court awarded a decree for joint possession. The plaintiff set out his case from the outset and the defendants had notice of the alternative case. They might have applied to the Court under the provisions of the Code to exclude one of the causes of action from the present trial. They, however, did not do so. The case went to trial and was argued in both the lower Courts without any objection, and now in the second appeal we are asked to put an end to the whole of the proceedings on the ground that contradictory causes of action ought not to be tried together. We think there is no force in this contention. Having regard to the fact that the case was tried in that way without any objection in the first Court on the settlement of issue the objection urged in this appeal was not raised and in the lower Appellate Court where the present appellants were also the appellants they raised no point excepting the two mentioned by the learned Judge in his judgment as matters for determination and these matters having been determined in the suit against them, the appellants cannot now in the second appeal raise a matter which has not been considered by the lower Courts. The appeal fails and is dismissed with costs.


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